Commercial speech refers to any speech which promotes at least some type of commerce. As established in Central Hudson v. Public Svn. Comm’n, commercial speech is less protected under the First Amendment than other forms of speech.
Is the disparagement clause of the Lanham Act, which allows the USPTO to refuse federal registration to marks which “may be disparaging” to persons of a certain race, ethnicity, gender, religion, or sexual orientation, invalid under the Free Speech Clause of the First Amendment
This case will address the constitutionality of the disparagement clause, or §2(a) of the Lanham Act. Simon Tam, spokesperson for THE SLANTS, an Asian-American dance-rock band, argues that this provision, which allows the USPTO to deny federal registration to marks that “may be disparaging,” poses impermissible censorship of political speech in instances where registrants seek to reappropriate a previously disparaging term. Michelle K. Lee, the Under Secretary of Commerce for Intellectual Property and Director of the USPTO, maintains that this provision merely denies federal registration for a government program but does not restrict an individual’s political or commercial speech. The resolution of this case will determine whether the owners of potentially disparaging marks, such as the Washington Redskins, have the right to register their marks, bring suit for infringement, and use government resources for policing new trademark applicants and potential infringement.
Section 2(a) of the Lanham Act, 15 U.S.C. 1052(a), provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of * * * matter which may disparage * * * persons, living or dead, institutions, beliefs, or nation-al symbols, or bring them into contempt, or disrepute.”
The question presented is as follows:
Whether the disparagement provision in 15 U.S.C. 1052(a) is facially invalid under the Free Speech Clause of the First Amendment.
On November 14, 2011, Simon Tam filed an application to register the name of an Asian-American dance-rock band, THE SLANTS, with the United States Patent and Trademark Office (“USPTO”). In Re Simon Shiao Tam, 808 F.3d 1321, at 10–11 (2015). Tam and his fellow band members have used this mark in commerce since 2006, when they first formed the band.
Does a California law requiring licensed pregnancy clinics to disseminate a notice containing information about state-funded family planning services including abortion and requiring unlicensed pregnancy clinics to disclose their unlicensed status violate the First Amendment’s free speech clause?
This case will determine how much a state can force a medical provider to say when that speech is antithetical to the provider’s religious beliefs. California’s Reproductive FACT Act (“the Act”) requires licensed pregnancy-service facilities to disseminate a notice stating that: “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women” and providing a phone number that patients can call to seek more information. The Act also requires unlicensed clinics to distribute a notice disclosing that they are not licensed by the state. The National Institute of Family and Life Advocates (“NIFLA”) argues that the Act unconstitutionally compels speech and should be subjected to strict scrutiny, which it cannot survive. NIFLA further contends that the Act discriminates impermissibly against pro-life clinics based on their viewpoint. California responds that the Act is a permissible exercise of the government’s authority to regulate speech between professionals and their clients, which survives any level of scrutiny. California also claims that the Act addresses fraudulent practices affecting women’s understanding of their reproductive healthcare choices and does not suppress pro-life viewpoints. Will free speech prevail over regulation of doctors and will the result benefit pregnant women?
Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the Free Speech Clause of the First Amendment, applicable to the states through the Fourteenth Amendment.
In 2015, the California Legislature passed the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (“the Act”) into law, declaring in the bill’s text that “all California women, regardless of income, should have access to reproductive health services.” See Nat’l Inst.
Can a state prohibit the nonconsensual sale of doctors’ prescribing information contained in nonpublic prescription drug records, or is such a restriction an improper infringement on the free speech of pharmaceutical companies?
In 2007, Vermont passed Act 80, which prohibits prescription drug companies from obtaining patients’ personal information for marketing purposes without the prescribing physician’s consent. The pharmaceutical companies sued the state of Vermont, seeking an injunction prohibiting the enforcement of Act 80 on the grounds that it was an unconstitutional restriction on their right to commercial speech. Vermont argues that Act 80 does not regulate speech protected by the First Amendment, and that the law is related to Vermont’s interests of protecting medical privacy, controlling health care costs, and protecting public health. On the other hand, the pharmaceutical companies argue that Act 80 is unconstitutional because it discriminates against the speech of pharmaceutical manufacturers and it is not related to Vermont’s state interests. The Supreme Court’s decision will affect patients’ and physicians’ privacy, the marketing of prescription drugs, and the status of other laws protecting consumer privacy.
Whether a law that restricts access to information in nonpublic prescription drug records and affords prescribers the right to consent before their identifying information in prescription drug records is sold or used in marketing runs afoul of the First Amendment.
When filling prescriptions, Vermont pharmacies collect personal data about the patients and sell the data to data miningcompanies. See IMS Health, Inc. v. Sorrell, 630 F.3d 263, 267 (2d Cir. 2010).
· Wex: First Amendment
· Biotech Strategy Blog, Pieter Droppert: U.S. Supreme Court to Decide Whether Vermont Can Control the Use of Prescribing Data by IMS Health and Pharma Companies (Jan. 17, 2011)
· Daily Finance, Abigail Field: Is Data Mining Free Speech? The Supreme Court Agrees to Decide a Crucial Case (Jan. 11, 2011)
